The SCOW docket: Giving the Legislature free rein on constitutional amendments

​As we await opinions from the Supreme Court of Wisconsin's new term, we will go back to a few decisions from last term and crunch them down to size.
 
Note: This one is a little different. WJI's "SCOW docket" pieces generally include decisions, dissents, and concurrences all in one post. This time, with this case, we are doing it in three: first the decision, then the dissent, then the concurrences. Why? Because this package of writings is extremely important for future ballot questions regarding state constitutional amendments. Besides that, the SCOW decisions are unusually long – 111 pages in all, not counting the cover sheets. Plus, it's a case that WJI cares a lot about.
 
Instead of allowing each writing justice 10 paragraphs, we are giving the majority opinion writer 18 and each other opinion writer 15. Other than that, the rules remain the same. The "upshot" and "background" sections do not count as part of the paragraph restrictions because of their summary and very necessary nature. We've removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. ​Italics indicate WJI insertions except for case names and emphasis added by the opinion writer, all of which also are italicized.
 
The case: Wisconsin Justice Initiative, Inc., et al. v. Wisconsin Elections Commission, et al.
 
​Majority opinion: Justice Brian Hagedorn (42 pages), joined in full by Chief Justice Annette Ziegler and Justices Patience Roggensack and Rebecca Grassl Bradley, joined in part (seven paragraphs at the end on the multiple-question issue) by Justices Rebecca Frank Dallet and Jill J. Karofsky
 
Concurrence: Grassl Bradley (14 pages), joined by Ziegler and Roggensack

Concurrence: Dallet (32 pages), joined in full by Karofsky, joined in part by Justice Ann Walsh Bradley
 
Concurrence: Hagedorn (9 pages), joined in part by Dallet
 
Dissent: Walsh Bradley (14 pages)

Hagedorn

The upshot

We . . . hold that WJI's challenges to Marsy's Law fail. The ballot question was not submitted to the people in violation of the process outlined in the Wisconsin Constitution. Therefore, absent challenge on other grounds, the amendment has been validly ratified and is part of the Wisconsin Constitution.

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Through the Wisconsin Constitution, the people of Wisconsin have given the legislature broad authority to determine how proposed constitutional amendments may be submitted to the people for ratification. WJI argues that the ballot question for Marsy's Law was constitutionally deficient under Article XII, Section 1 on multiple grounds. We disagree. We conclude that the ballot question was not fundamentally counterfactual such that voters were not afforded the opportunity to approve the actual amendment. Rather, Marsy's Law was validly submitted to and ratified by the people of Wisconsin, as the constitution requires. WJI further argues Marsy's Law should have been split into more than one amendment, each receiving a separate vote. However, the constitution did not require that here. We conclude the amendment had the single general purpose of expanding and protecting victims' rights, and all provisions of the proposed amendment furthered this purpose. For these reasons, WJI's constitutional challenges to the ratification of Marsy's Law do not succeed, and we reverse the circuit court's judgment to the contrary.
 
Background

When the Wisconsin Constitution was adopted in 1848, it included a process enabling amendments — an act the people of Wisconsin have seen fit to do almost 150 times. A proposed amendment must be approved by a majority of both houses of the legislature in two successive legislative sessions. Once it passes that test, the proposed amendment is submitted to the people. If a majority vote yes, it becomes part of our constitution. A victim's rights amendment termed "Marsy's Law" by its sponsors (a term we also use in this opinion) was ratified by the people in April of 2020. In this case, Wisconsin Justice Initiative, Inc. and several citizens (collectively "WJI") argue that Marsy's Law was adopted in violation of the process spelled out in the constitution.

. . . . The relevant constitutional text governing the claims here is found in Article XII, Section 1. It provides that the legislature has a duty "to submit such proposed amendment or amendments to the people in such manner and at such time as the legislature shall prescribe." And, "if more than one amendment be submitted, they shall be submitted in such manner that the people may vote for or against such amendments separately."

The Legislature in consecutive sessions passed a joint resolution setting forth the Marsy’s Law amendment, which among other things, expanded the definition of "victim," provided that enumerated victims' rights vest at the time of victimization and must "be protected by law in a manner no less vigorous than the protections afforded to the accused," eliminated language stating that victims could be barred from the courtroom before testifying if "necessary to a fair trial for the defendant," provided that victims may refuse discovery requests made by an accused, eliminated a provision from the prior victims' rights constitutional provision that "(n)othing in this section, or in any statute enacted pursuant to this section, shall limit any right of the accused which may be provided by law," and created rights for victims to seek appellate court review of certain decisions.

The legislature directed that this amendment, informally known as "Marsy's Law," be submitted for ratification at the April 7, 2020 election. The legislature determined that the ballot question should state as follows: "Question 1: Additional rights of crime victims. Shall section 9m of article I of the constitution, which gives certain rights to crime victims, be amended to give crime victims additional rights, to require that the rights of crime victims be protected with equal force to the protections afforded the accused while leaving the federal constitutional rights of the accused intact, and to allow crime victims to enforce their rights in court?"

Several months before the April election, WJI brought suit against the Wisconsin Elections Commission (WEC) alleging the ballot question failed to satisfy the requirements of the Wisconsin Constitution. WJI sought declarations that the ballot question violated Article XII, Section 1 of the Wisconsin Constitution on various grounds, and requested both a permanent injunction and a temporary injunction preventing submission of the question to voters while the litigation was pending. The circuit court denied WJI's motion for a temporary injunction, and Wisconsinites ratified the amendment at the April 7, 2020 election by a vote of 1,107,067 to 371,013. Several months later, the circuit court granted declaratory judgment in favor of WJI, concluding the ballot question failed to meet all the requirements with respect to content and form. The circuit court, on its own motion, stayed judgment pending appeal. WEC appealed, and the court of appeals certified the appeal to this court, which we accepted.
 
WJI argued before the Supreme Court that the ballot question for Marsy's Law violated the Wisconsin constitutional requirements for amendments by failing to contain "every essential" of the proposed amendment as required by prior Wisconsin Supreme Court caselaw, in particular by failing to state that the definition of "victim" was being expanded and that the constitutional rights of those accused of crime were being diminished. Further, WJI argued that the ballot question misstated the contents of the amendment and was misleading because it stated that victims' rights would be equal to the rights of an accused, while the language of the amendment actually provided that victims' rights could exceed the rights of an accused. Further, the question told voters that the federal rights of an accused would remain intact, misdirecting voters and failing to tell them that state constitutional and statutory rights of an accused were being eliminated. WJI's argument on these points relied on Wisconsin Supreme Court cases from 1925 (Ekern) and 1953 (Thomson), which no party to the case, including the defendants-appellants in their briefs to the Supreme Court and lower courts, had questioned.

Finally, WJI argued that Marsy’s Law contained more than one amendment, requiring multiple ballot questions.

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The guts​

Just as the purpose of statutory interpretation is to determine what the statutory text means, the purpose of constitutional interpretation is to determine what the constitutional text meant when it was written, commonly called the original public meaning or original understanding. Although constitutional language is at times written with less precision, that fact does not fundamentally change the nature of our charge. We must similarly focus on the constitutional text, reading it reasonably, in context, and with a view of the provision's place within the constitutional structure. Other sources such as the debates and practices at the time of adoption, along with early legislative enactments, may prove helpful aids to interpretation. Just as we leave policy choices to the legislature in statutory interpretation, we must leave policy choices to the people in constitutional interpretation. 

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This court has doubled down on this approach in recent years. In State v. Roberson, for example, we overruled our prior decision in State v. Dubose, which had adopted new requirements for the admissibility of out-of-court identification evidence under the Wisconsin Constitution. We did so, however, not based on the policies reflected in this decision, but based on our assessment of the "original meaning of the Wisconsin Constitution." We recognized that while state constitutions may provide further protection to citizens than the federal Constitution, "the question for a state court is whether its state constitution actually affords greater protection." Critically, we held, "A state court does not have the power to write into its state constitution additional protection that is not supported by its text or historical meaning."
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Our constitutional analysis begins with the text. As relevant to this dispute, following initial adoption in the legislature and other procedural requirements, the constitution requires "the legislature to submit such proposed amendment or amendments to the people in such manner and at such time as the legislature shall prescribe." This language commands only two things: First, the amendment must be "submitted" to the people; and second, it must be done in the manner and at the time prescribed by the legislature. . . . 

Hagedorn then discusses how in the early years after adoption of the Wisconsin Constitution, ballot questions were submitted as simple up or down votes.

Thus, no ballot question in the first 22 years after the constitution was adopted contained any substantive description of the amendment at all. So far as we can tell, no one questioned the validity of this process. If in fact the constitution requires the content of a proposed amendment to be included in the ballot question, the inescapable conclusion is that every one of these amendments was submitted to the people in an unconstitutional manner — with no one batting an eye. That is highly unlikely. The overwhelming, indeed, uniform teaching of the text and history surrounding Article XII, Section 1 of the Wisconsin Constitution is that an amendment only needs to be submitted to the people for ratification. It need not — as a constitutional prerequisite — contain any kind of description of the amendment's substance.

Hagedorn then discusses how the Legislature beginning in 1870 added a general subject area to the ballot question and in 1874 presented a longer, more substantive question to voters, "immediately followed by a return to ballot questions without subject matter."​

The first case to address the manner of the legislature's submission to the people occurred in 1925. The question before this court in Ekern was whether the legislature complied with the constitution when it delegated the drafting of a ballot question to the secretary of state. We held that this was permissible. The constitution requires that the legislature determine the "manner" of submission to the people, and we concluded this language was broad enough to encompass directing the secretary of state to determine the content of the ballot question. Although extraneous to the issue in the case, the court engaged in an extended digression regarding the content and design of ballot questions. Because this language is the genesis for the proposed "every essential" test we are asked to breathe life into in this case, we quote the discussion at length and in context:
". . . . Had the framers of the constitution intended that the legislature should prescribe the form, it might easily have done so by using a few additional words, or it might have so worded the provision that the idea of form would have been necessarily included by implication. This, however, was not the case, and it is highly probable that the framers had in mind the vital distinction existing between matters of substance and matters of mere form. Had the legislature in the instant case prescribed the form of submission in a manner which would have failed to present the real question, or had they by error or mistake presented an entirely different question, no claim could be made that the proposed amendment would have been validly enacted. In other words, even if the form is prescribed by the legislature it must reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment. This demonstrates quite clearly the fact that the form of submission is after all a mere form, and that the principal and essential criterion consists in the submission of a question or a form which has for its object and purpose an intelligent and comprehensive submission to the people, so that the latter may be fully informed on the subject upon which they are required to exercise a franchise." (Emphasis added by Hagedorn.) 

Reviewing this discussion, the "every essential" language does not read as a separate test. Rather, it comes as an explanatory statement (phrased as "[i]n other words") for the comment that the real question, not an entirely different question, must be submitted to the people. Therefore, an effort to infuse constitutional significance into this language is not an accurate reading of Ekern on its own terms. The relevant discussion in Ekern simply does not set forth a substantive, explainable "every essential" test at all. And why would it? The content of the ballot question was not challenged and was not at issue. There was no need to create, much less apply, a new substantive constitutional test.

Therefore, we do not understand Ekern as adopting or creating a new, undefined, and strict constitutional test for detail and accuracy in constitutional amendment ballot questions. Rather, Ekern's discussion is best read as affirming the unremarkable proposition that the real question of the amendment must be submitted to the people. This is consistent with the constitutional requirement that a proposed amendment must be "submitted" in order to be validly ratified. Where a question is not the real question at all, such a proposal cannot be said to be submitted to the people.

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The ballot question in Thomson stated that, if approved, "the legislature shall apportion senate districts along" certain municipal lines — using mandatory language. The problem, we explained, is "the actual amendment . . . has no such mandate at all and under it the legislature is uncontrolled except that the territory inclosed shall be 'contiguous' and 'convenient.'" The question given to the voters was the opposite of what the amendment actually provided. We concluded the question was misinformation and not "in accord with the fact." We cited Ekern and concluded that the "question as actually submitted did not present the real question but by error or mistake presented an entirely different one." Accordingly, there was "no valid submission to or ratification by the people." To this day, Thomson remains the only case in state history where a constitutional amendment was deemed invalid because it was not "submitted" to the people.

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Hagedorn then states that these principles of law follow from his discussion of the ballots and caselaw.

First, Article XII, Section 1 does not require any substantive discussion of the amendment in the ballot question submitted to the people. No explanation or summary is constitutionally commanded.

Second, the constitution requires that the amendment be "submitted" to the people for ratification. We held in Thomson, borrowing language from Ekern, that an amendment has not been "submitted" to the people when the ballot question fails to present the real question or is contrary to the amendment itself. In other words, voters have not been given the opportunity to vote for or against a proposal when the ballot question is fundamentally counterfactual. When a ballot question is factually inaccurate in a fundamental way, it cannot be said that the amendment was actually submitted to the people for ratification. But given the unique facts of Thomson and the broad authority given to the legislature in the constitution, this requirement is narrow and will be triggered only in rare circumstances.

Third, this court has never, in a single case, developed or applied an "every essential" test for review of proposed constitutional amendments. Nowhere in our two cases that use this language have we established, defined, or utilized such a test.

And finally, because it is our solemn obligation to follow the original meaning of the constitution, we will not design, invent, or breathe life into the so-called "every essential" test without a constitutional command to do so.

Insofar as the content of a proposed ballot question is concerned, the relevant constitutional question is whether the proposed amendment was, at a basic level, submitted to the people for ratification. A ballot question could violate this constitutional requirement only in the rare circumstance that the question is fundamentally counterfactual such that voters were not asked to approve the actual amendment. These principles in hand, we examine WJI's argument that the ballot question at issue here failed to satisfy this constitutional requirement.

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First, WJI argues that the ballot question fails because it does not mention the new section creating a constitutional definition of a "victim." In an amendment of this length and complexity, the legislature had to make choices of what to include and how to phrase it. We must give significant deference to the legislature in making these choices because the constitution affords the legislature substantial discretion in submitting an amendment to the people. While the legislature could have decided that more be said, WJI's legal argument depends on its erroneous contention that the constitution demands a more exacting review of the legislature's choices. It does not. A constitutional definition of "victim" fits comfortably within the statement that crime victims are given certain or additional rights, as the ballot question states. Nothing here is fundamentally counterfactual such that voters were not asked to approve the actual amendment.

Second, WJI contends the ballot question failed to correctly capture how the rights of the accused would change. It offers several arguments in this regard. WJI asserts the ballot question is misleading because it requires "that the rights of crime victims will be protected with equal force to the protections afforded the accused," while the text of the amendment says victim rights will "be protected by law in a manner no less vigorous than the protections afforded to the accused." While the parties debate the import of this wording choice, we again emphasize the deference owed to the legislature in explaining the proposal to the people. Minor deficiencies in a summary (and all summaries will, by necessity, be incomplete) do not give rise to the kind of bait-and-switch we struck down in Thomson. This does not rise to the level of a fundamentally counterfactual question such that voters were not asked to approve the actual amendment.

WJI additionally suggests the ballot question is misleading because the amendment reduces the rights of the accused. Prior to Marsy's Law, Article I, Section 9m stated, "Nothing in this section, or in any statute enacted pursuant to this section, shall limit any right of the accused which may be provided by law." Marsy's Law struck this sentence and added: "This section is not intended and may not be interpreted to supersede a defendant's federal constitutional rights or to afford party status in a proceeding to any victim." WJI says the ballot question was misleading because this change in its view could reduce the rights of the accused in some situations, yet voters were told "the federal constitutional rights of the accused" would be left intact. We once again return to the relevant question: the issue is not whether the amendment was explained, but whether it was "submitted" to the people. Nothing in the constitution requires that all components be presented in the ballot question. The constitution leaves the level of detail required to the legislature, which may impose more or less requirements on itself. The failure to raise an issue in a summary or describe it with precision does not amount to the kind of wholesale inaccuracy of Thomson or suggest the amendment was not submitted to the people. This as well does not rise to the level of a fundamentally counterfactual question such that voters were not asked to approve the actual amendment.

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Hagedorn then turns to the issue of whether multiple ballot questions were required.

Our most recent formulation of the test was in . . .  a case challenging the adoption of Article XIII, Section 13, governing marriage. There, we articulated the test as follows: "It is within the discretion of the legislature to submit several distinct propositions as one amendment if they relate to the same subject matter and are designed to accomplish one general purpose. The general purpose of an amendment may be deduced from the text of the amendment itself and from the historical context in which the amendment was adopted. And all of the propositions must tend to effect or carry out that purpose." Applying this test, we concluded a single amendment was appropriate because "the general purpose of the marriage amendment is to preserve the legal status of marriage in Wisconsin as between one man and one woman.  Both propositions in the marriage amendment relate to and are connected with this purpose." 

The parties do not dispute that this is the governing test. And we see no reason to question the textual and historical analysis . . . . Employing this test, we have no difficulty concluding Marsy's Law did not violate the constitutional prohibition on submitting multiple amendments as one. The amendment broadly protects and expands crime victims' rights. This is plain from the text and history of its adoption. In so doing, it amends only Section 9m of Article I. Even if WJI is correct that it will impact those accused of crimes as well (an issue we need not decide), all of the changes relate to the same, general purpose of expanding and protecting the rights of crime victims. All of the propositions are aimed at this goal, and tend to effect or carry this out. We hold that WJI's challenge to Marsy's Law on the ground that it was required to be submitted as separate constitutional amendments fails.